JK 1542 
.P5 
1912a 
Copy 1 



'ONGRESS, 

Ha Session. 



HOUSE OF EEPEESENTATIVES. 



Report 
No. 612. 



REGULATION OF INJUNCTIONS. 



April 26, 1912. — Referred to the House Calendar and ordered to be printed. 



Mr, Clayton, from the Committee on the Judiciary, submitted the 

following 

REPOET. 

[To accompany II. R. 23635.] 

The Committee on the Judiciary, having had under consideration 
H. R. 23635, to amend an act entitled "An act to codify, revise, and 
amend the laws relating to the judiciary," approved March 3, 1911, 
report the same back with the recommendation that the bill do pass. 

The too ready issuance of injunctions or the issuance without 
proper precautions or safeguards has been called to the attention of 
the Congress session after session for many years. The bill now re- 
ported seeks to remedy the evils complained of by legislation directed 
to those specific matters which have given rise to most criticism. 
These matters are so segregated in various sections of the bill that 
they may be separately discussed. 



The first section of the bill amends section 263 of the judicial 
code which relates to two distinct steps in the procedure, namely, 
notice and security. But the amended section relates only to the 
notice, leaving the matter of security to be dealt with by a new 
section 266a. 

FORMER STATUTES. 

In order to fully understand the subject of notice in injunction cases 
it is necessary to give an historical resume of the subject. In the judi- 
ciary act of 1789 which was passed during the first session of that 
year, Congress having created the different courts according to the 
scheme outlined by Chief Justice Ellsworth, conferred upon the 
courts power to issue all writsy including writs of ne exeat (a form 



2 REGULATION OF INJUNCTIONS. 

of injunction), according to legal usages and practice. In 1793, 
howcA-er, there was a revision of that statute, and among other 
things the same powers, substantially, were conferred upon the 
judges as before ; but at the end of the section authorizing the issu- 
ance of injunctions, was this language: "No injunction shall be 
issued in an}^ case without reasonable previous notice to the adverse 
party or his attorney." 

The law stood thus until the general revision of 1873, during 
which period the law expressly required reasonable notice to be 
given in all cases. But the will of Congress as thus expressed was 
completely thwarted and the statute nullified by the peculiar con- 
struction placed upon it by the courts. The question frequently 
arose. The courts got around it in various ways, but usually by hold- 
ing that it did not apply to a case of threatened irreparable injury, 
notwithstanding that its language was broad and sweeping, plainly 
covering all cases. Another form of expression often used is found 
in Ex parte Poultney (4 Peters C. C. C, 472) : 

Every court of equity possesses the power to mold its rules in relation to 
the time of appearing and answering so as to prevent the rule from working 
injustice, and it is not only in the power of the court, but it is its duty to 
exercise a sound discretion upon this subject. 

The court found a similar method of evading the sweeping pro- 
hibition of the revision of 1793, with respect to notice in Lawrence 
V. Bowman (1 U. S. C. C., Alester, 230). 

But the earliest provision requiring notice came before the Supreme 
Court in 1799, in New York v. Connecticut (4 Dall., 1). Its consti- 
tutionality was not questioned. The only issue was as to the suffi- 
ciency of the notice. Chief Justice Ellsworth, for the court, saying: 
" The prohibition contained in the statute that writs of injunction 
shall not be granted without reasonable notice to the adverse party 
or his attorney, extends to injunctions granted by the Supreme 
Court or the circuit court as well as to those that may be granted 
by a single judge. The design and effect, however, of injunctions 
must render a shorter notice, reasonable notice, in the case of an 
application to a court than Avould be so construed in most cases of 
an application to a single judge, and until a general rule shall be 
settled the particular circumstances of each case must also be 
regarded." 

Here was a case in which, although no pomt was made by counsel 
on any question of constitutionality, the Supreme Court accepted 
the comprehensive requirement of the act of 1793 as binding on all 
the Federal courts. 

Now we come to the present law, found in section 263 of the 
Judicial Code, and reading thus: 

Whenever notice is given of a motion for an injunction out of a district 
court, the court or judge thereof may, if there appears to be danger of irre- 
parable injury from delay, grant an order restraining the act sought to b© 
enjoined until the decision upon the motion; and such order may be granted 
with or without security, in the discretion of the court or judge. 

This was the law as contained in section 718 of the Eevised 
Statutes, said section having been enacted in 1872. It simply em- 
bodies the practice of the courts with respect to notice, a practice 
established notwithstanding the nonconformity of the practice to 
the positive requirement of the act of 1793. 



^•,<>^'^"^ EEGULATION OF INJUNCTIONS, 






1^^ PROPOSED CHANGES. 



But it will be seen that the giving of notice and requiring security, 
left by the present law to the discretion of the court, is by this bill a 
positive duty, except where irreparable and immediate injury might 
result from the giving of a notice or the delay incident thereto, 
in which case the court or judge may issue a temporary restraining 
order pending the giving of the notice. The concluding part of the 
amended section has an effect to safeguard parties from the reckless 
and inconsiderate issuance of restraining orders. Injuries com- 
pensable in damages recoverable in an action at law are not treated 
or considered by the courts as irreparable in any proper legal sense, , 
and parties attempting to show why the injurj^ sought to be re- 
strained is irreparable would often disclose an adequate legal remedy. 
This provision requires the reason to appear in the order, but it 
should be read in connection with the new section 266b, requiring 
the order to be made by the court or judge to be likewise specific in 
other essentials, and section 266c, requiring that every complaint 
filed for the purpose of obtaining the order, in the cases there speci- 
fied, shall contain a particular description of the property or property 
right for which the prohibitive power of the court is sought, and that 
such complaint shall be verified. 

A valuable provision of the amendment is one that a restraining 
order issued without notice " shall by its terms expire within such 
time after entry, not to exceed seven days, as the court or judge may 
fix, unless within the time so fixed the order is extended or renewed 
for a like period, after notice to those previously served, if any, and 
for good cause shown, and the reasons for such extension shall be 
entered of record." 

A legislative precedent for such legislation is found in the act of 
1807, wherein it was provided that injunctions granted by the dis- 
trict courts " shall not, unless so ordered by the circuit court, con- 
tinue longer than to the circuit court next ensuing, nor shall an in- 
junction be issued by a district judge in any case where a party has 
had a reasonable time to apply to the circuit court for the writ." 
(U. S. Stat. L., vol. 2, p. 418.) 

If the views of President Taft on this subject have not changed, 
he will welcome an opportunity to approve a bill containing such 
provisions as those in the amendment governing notice, because in 
his message of December T, 1909, to the regular session of the Sixty- 
first Congress, after a quotation from the Eepublican platform of 
1908, he said: 

I recommend that in compliance with tlie promise thus made appropriate 
legislation be adopted. The ends of justice will best be met and the chief 
cause of complaint against ill-considered injunctions without notice will be 
removed by the enactment of a statute forbidding hereafter the issuing of any 
injunction or restraining order, whether temporary or permanent, by any 
Federal court without previous notice and a reasonable opportunity to be heard on 
behalf of the parties to be enjoined ; unless it shall appear to the satisfaction of 
the court that the delay necessary to give such notice and hearing would result 
in irreparable injury to the complainant, and unless, also, the court shall from 
the evidence make a written finding, which shall be spread upon the court 
minutes, that immediate and irreparable injury is likely to ensue to the com- 
plainant, and shall define the injury, state why it is irreparable, and shall 
also indorse on the order issued the date and the hour of the issuance of the 
order. Moreover, every such Injunction or restraining order issued without 



4 REGULATION OF INJUNCTIONS. 

previous notice and opportunity by the defendant to be beard should by force 
of the statute expire and be of no effect after seven days from the issuance 
thereof or within any time less than that period which the court may fix, 
unless within such seven days or such less period the injunction or order is 
extended or renewed after previous notice and opportunity to be heard. 

My judgment is that the passage of such an act. which really embodies 
the best practice in equity and is very likely the rule now in force in some 
courts, will prevent the issuing of ill-advised orders of injunction without 
notice and will render such orders, when issued, much less objectionable 
by the short time in which they may remain effective. 

II. 

Section 266a simply requires security for costs and damages in 
all cases, leaving it no longer within the discretion of the courts 
whether any such security or none shall be given. 

Prior to the said act of 1872 (contained in the revision of 1873) 
there appeai-s to have been no legislation on the matter of security 
in injunction cases; but that security was usually required is a fact 
well known to the legal profession. It seems clearly just and salu- 
tary that the extraordinary^ writ of injunction should not issue in 
any case until the party seeking it and for whose benefit it issues 
has provided the other party with all the protection which security 
for damages affords. 

It appears by the authorities, both English and American, to 
have been always within the range of judicial discretion, in the 
absence of a statute, to waive security, though better practice has 
been to require security as a condition to issuing restraining orders 
and injunctions. 

The new section, 266a, takes the matter of requiring security out 
of the category of discretionary matters, where it was found by the 
Committee on Revision and permitted to remain. 

For a discussion of the existing law on the question of security, 
we refer to Russell v. Farley (105 U. S., 433). 

III. 

Section 266b is of general application. Defendants should never 
be left to guess at what they are forbidden to do, but the order 
" shall describe in reasonable detail, and not by reference to the bill 
of complaint or other document, the act or acts sought to be re- 
strained." It also contains a safeguard against what have been 
heretofore known as dragnet or blanket injunctions, by which large 
numbers may be accused, and eventually punished, for violating 
injunctions in cases in which they were not made parties in the 
legal sense and of which they had only constructive notice, equivalent 
in most cases to none at all. Moreover, no person shall be bound 
by any such order without actual personal notice. 

EXISTING LAW AND PRACTICE. 

There was heretofore no Federal statute to govern either the mat- 
ter of making or form and contents of orders for injunctions. Of 
course, where a restraining order is granted that performs the func- 
tions of order, process, and notice. But the writ of injunction, where 



EEGULATION OF INJUNCTIONS. 5 

temporary, is preceded by the entry of an order, and where per- 
manent by the entry of a decree. 

The whole matter appears to have been left, both by the States and 
the Federal Government, to the courts, which have mostly conformed 
to established principles. 

The most important of these was that the order should be suffi- 
ciently clear and certain in its terms that the defendants could by 
an inspection of it readily know what they were forbidden to do. 

See Arthur v. Oakes, 63 Fed. Eep., 310, 25 L. K. An., 414; St. 
Louis Min., etc., Co. v. Co. c. Montana Min. Co., 58 Fed. Kep., 129; 
Sweet V. Mangham, 4 Jur., 479; 9 L. J. Ch., 323, 34 Eng. Ch., 51; 
Cother v. Midland R. Co., 22 Eng. Ch., 469. 

It should also be in accordance with the terms of the prayer of the 
bill. (State v. Rush County, 35 Kan., 150; McEldowney v. Lowther, 
49 W. Va., 348.) It should not impose a greater restraint than is 
asked or is necessary (Shubert v. Angeles, 80 N. Y. App. Div., 625; 
New York Fire Dept. v. Baudet, 4 N. Y. Supp., 206), and should be 
specific and certain. (Orris v. National Commercial Bank, 81 N. Y. 
App. Div., 631 ; St. Eege's Paper Co. v. Santa Clara Lumber Co., 55 
N. Y. App. Div., 225; Norris v. Cable, 8 Rich (S. C), 58; Parker v. 
First Ave. Hotel Co., 24 Ch. Div., 282; Hackett v. Baiss, L. R., 20 
Eq., 494; Dover Harbour v. London, etc., R. Co., 3 De. G. F. & J., 
559; Low v. Innes, 4 De G. J. & S., 286.) 

So it appears that section 266b really does not change the best prac- 
tice with respect to orders, but imposes the duty upon the courts, in 
mandatory form, to conform to correct rules, as already established 
by judicial precedent. 

That such provision is necessary and timely will appear upon an 
inspection of some orders which have issued. 

For instance, take the case of Kansas & Texas Coal Co. v. Denney, 
decided in the district court for Arkansas in 1899. And here, as in 
most of such cases, no full official report of the case can be obtained, 
but a mere memorandum. In this case the defendants (strikers) were 
ordered to be and were enjoined from " congregating at or near or 
on the premises of the property of the Kansas & Texas Coal Co. 
in, about, or near the town of Huntington, Ark., or elsewhere, for 
the purpose of intimidating its employees or preventing said em- 
ployees from rendering service to the Kansas & Texas Coal Co. from 
inducing or coercing by threats, intimidation, force, or violence any 
of said employees to leave the employment of the said Kansas & 
Texas Coal Co., or from in any manner interfering with or molesting 
any person or persons who may be employed or seek employment by 
and of the Kansas & Texas Coal Co. in the operation of its coal 
mines at or near said town of Huntington, or elsewhere." 

It will be observed that a defendant in that suit would render 
himself liable to punishment for contempt if he met a man seeking 
employment by the company in a foreign country and persuaded 
him not to enter its service. 

The bill further provides that it shall be " binding only upon 
parties to the suit, their agents, servants, emploj^ees, and attorneys, 
or those in active concert with them, and who shall by personal serv- 
ice or otherwise have received actual notice of the same." Unques- 
tionably this is the true rule, but unfortunately the courts have not 



b KEGULATION OF INJUNCTIONS. 

uniformly observed it. Much of the criticism which arose from the 
Debs case (64 Fed. Eep., 724) was due to the fact that the court 
undertook to make the order effective not onlj' upon the parties 
to the suit and those in concert with them, but upon all other per- 
sons whomsoever. In Scott v. Donald (165 U. S., 117), the court 
rebuked a violation by the lower court in the following language : 

Tlie decree is also objectionable because it enjoins persons not parties to the 
suit. This is not a case where the defendants named represent those not 
named. Nor is there alleged any conspiracy between the parties defendant and 
other unknown parties. The acts complained of are tortious and do not 
grow out of any common action or agreement between constables and sheriffs 
of the State of South Carolina. We have indeed a right to presume that such 
officers, though not named in this suit, will, when advised that certain provi- 
sions of the act in question have been pronounced unconstitutional by the court 
to which the Constitution of the United States refers such questions, volun- 
tarily refrain from enforcing such provisions; but we do not think it comports 
with well-settled principles of equity procedure to include them in an iujunc- 
tion in a suit in which they were not heard or represented or to subject them 
to penalties for contempt in disregarding such an injunction. (Fellows v. 
Fellows. 4 John. Chan., 25, citing Iveson v. Harris, 7 Ves., 2.57.) 

The decree of the court below should therefore be amended by being re- 
stricted to the parties named as plaintiff and defendants in the bill, and this is 
directed to be done, and it is otherwise. 

IV. 

Section 266c is concerned with cases between " employer and 
emploj^ees, or between employers and employees, or between em- 
ployees, or between persons employed and persons seeking employ- 
ment, involving or growing out of a dispute concerning terms or con- 
ditions of employment." 

The first clause of the new section 266c relates to the contents and 
form of the complaint. It must disclose a threatened irreparable in- 
jury to property or to a property right of the party making the appli- 
cation for which there is no adequate remedy at law. And the prop- 
erty or property right must be described " with particularity." 

These requirements are merely those of good pleading and correct 
practice in such cases established by a long line of precedents, well 
understood by the profession and Avhich should be but perhaps have 
not been uniformly applied. To show this it is only necessary to 
briefly state the applicable rules, citing some of the numerous 
authorities. 

As the granting of an inj' unction rests in some degree in the discre- 
tion of the chancellor, allegations in the complaint should show 
candor and frankness. (Moifatt v. Calvert Countv Comm'rs, 97 
Md., 266; Johnston v. Glenn, 40 Md., 200; Edison Storage Battery 
Co. V. Edison Automobile Co., 67 N. J. Eq., 44; Sharp v. Ashton, 3 
Ves. & B., 144.) 

The omission of material facts which, in the nature of the case, 
must be known to the plaintitf will preclude the granting of the 
relief. (Sprigg v. Western Tel. Co., 46 Md.. 67; Walker v. Burks, 
48 Tex., 206. \ 

An injunction may be refused if the allegations are argumentative 
and inferential. (Battle v. SteA^ens, 32 Ga., 25; Warsop v. Hastings, 
22 Minn., 437.) 

The allegations of the complaint must be definite and certain. 
(St. Louis V. Knapp Co., 104 U. S., 658.) 



REGULATION OP INJUNCTIONS. 7 

The complaint must set forth the facts with particularity, and 
minuteness (Minor v. Terry, Code Kep. N. S. (N. S.), 384), and 
no material fact should be left to inference. (AVarsop v. Hastings, 
22 Minn., 437 ; Philphower v. Todd, 11 N. J. Eq., 54 ; Perkins v. Col- 
lins, 3 N. J. Eq., 482.) 

Facts, and not the conclusions or opinions of the pleader, must be 
stated. (McBride v. Ross (D. C), 13 App. Cas., 576.) 

An injunction should not ordinarily be granted when the material 
allegations are made upon information and belief. (Brooks v. O'Hara, 
8 Fed. Rep., 529; In re Holmes, 3 Fed. Rep. Cases No. 1, 562.) 

The complaint must clearly show the threats or acts of defendant 
which cause him to apprehend future injury. (Mendelson v. McCabe, 
144 Cal., 230 ; Ryan v. Fulghuru. 96 Ga.,'234.) And it is not sufficient 
to allege that the defendant claims the right to do an act which 
plaintiff believes illegal and injurious to him, since the intention to 
exercise the right must be alleged. (Lutman v. Lake Shore, etc., R. 
Co., 56 Ohio St., 433; Attorney General v. Eau Claire, 37 Wis., 400.) 

The bill must allege facts which clearly show that the plaintiff 
will sustain substantial injury because of the acts complained of. 
(Home Electric Light, etc., Co. v. Gobe Tissue Paper Co., 146 Iiid., 
673; Boston, etc., Ry. Co. v. Sullivan, 177 Mass., 230; McGovern v. 
Loder (N. J. Ch., 1890). 20 Atl. Rep., 209; Smith v. Lockwood, 13 
Barb., 209; Jones v. Stewart (Tenn. Ch. App., 1900), 61 Sev., 105; 
Spokane St. R. Co. v. Spokane, 5 Wash., 634; State v. Eau Claire, 
40 Wis., 533. And it is not sufficient to merely allege injury without 
stating the facts. Giffing v. Gibb, 2 Black, 519; Spooner v. Mc- 
Connell, 22 Fed. Cases No. 13245; Bowling v. Crook, 104 Ala., 130; 
Grant v. Cooke, 7 D. C, 165; Coast Line R. Co. v. Caben, 50 Ga., 
461; Dinwiddle v. Roberts, 1 Greene, 363; Wabaska Electric Co. v. 
Wymore Co., Nebr., 199; Lubrs v. Sturtevant, 10 Or., 170; Farland 
V. Wood, 35 W. Va., 458.) 

Since the jurisdiction in equity depends on the lack of an ade- 
quate remedy at law, a bill for an injunction must state facts from 
which the court can determine that the remedy at law is inadequate. 
(Pollock V. Farmers' Loan & Tr. Co., 157 U. S., 429; Safe-Deposit 
etc., Co. V. Anniston, 96 Fed. Rep., 661.) 

If the inadequacy of the legal remedy depends upon the defend- 
ant's insolvency the fact of insolvency must be positively alleged. 
(FuUington v. Kyle Lumber Co., 139 Ala., 242; Graham v. Tankers- 
ley, 15 Ala., 634.) 

An injunction will not be granted unless the complaint shows that 
a refusal to grant the writ will work irreparable injury. (California 
Nav. Co. V. Union Transp. Co., 122 Cal., 641 ; Cook County Brick Co., 
92 111. App., 526; Manufacturers' Gas. Co. v. Indiana Nat. Gas, etc., 
Co., 156 Ind., 679.) And it is not sufficient simpW to allege that the 
injur}^ will be irreparable, but the facts must be stated so that the 
court may see that the apprehension of irreparable injury is well 
founded. (California Nav. Co. v. Union Transp. Co., 122 Cal., 641; 
Empire Transp. Co. v. Johnson, 76 Conn., 79 ; Orange Citv v. Thaver. 
45 Fla., 502.) 

The plaintiff must allege that he has done or is willing to do 
everything which is necessary to entitle him to the relief sought. 
(Stanley v. Gadsley, 10 Pet. (U. S.), 521; Elliott v. Sihley, 101 Ala., 



8 REGULATION OF INJUNCTIONS. 

344; Burham v. San Francisco Fuse Mfg. Co., 76 Cal., 26; Sloan v. 
Coolbaugh, 10 Iowa, 31; Lewis v. Wilson, 17 N. Y. Supp., 128; 
Spann v. Sterns, 18 Tex., 556.) 

The second paragraph of section 266c is concerned with specific 
acts which the best opinion of the courts holds to be within the right 
of parties involved upon one side or the other of a trades dispute. 
The necessity for legislation concerning them arises out of the diver- 
gent views which the courts have expressed on the subject and the 
difference between courts in the application of recognized rules. It 
may be proper to notice, in passing, that the State courts furnish 
precedents frequently for action by the Federal courts, and vice 
versa, so that a pernicious rule or an error in one jurisdiction is 
quickly adopted by the other. It is not contended that either the 
Federal or the State courts have stood alone in any of the precedents 
which are disapproved. The provisions of this section of the bill are 
self-explanator}^, and in justification of the language used we con- 
tent ourselves with submitting quotations from recognized authori- 
ties. We classify these authorities by quoting first the clauses of 
the bill to which they have particular reference. 

The first clause : 

And no such resti-aining order or injunction shall prohibit any person or 
persons from terminating any relation of em])loyment, or from ceasing to per- 
form any work or labor, or from recommending, advising, or persuading others 
by peaceful means so to do. 

In Allis Chalmers Co. v. Iron Molders' Union (C. C, 150 Fed. 
R., 155), Judge Sanborn said: 

The conclusion to be drawn from the cases, as applicable to this controversy, 
is, I think, that the combination of the defendant unions, their members, and 
the defendant O'Leary, to strike, and to further enforce the strike, and if 
possible to bring the employers to terms by preventing them from obtaining 
other workmen to replace the strikers, was not unlawful, because grounded on 
just cause or excuse, being the economic advancement of the union molders, and 
the competition of labor against capital. 

In Arthur v. Oakes (63 Fed. R., 310, 317) Justice Harlan, for the 
court, said: 

If an employee quits without fa use, and in violation of an express contract 
to serve for a stated time, then his quitting would not be of right, and he would 
be liable for any damages resulting from a broach of his agreement, and vev- 
haps, in some states of case, to criminal prosecution for loss of life or limb by 
passengers or others, directly resulting from his abandoning his post at a time 
when care and watchfulness were required upon his part- in the discharge of a 
duty he had undertaken to perform. And it may l)e assumed for the purposes 
of this discussion that he would be liable in like manner where the contract of 
service, by necessary implication arising out of the nature or the circumstances 
of the employment, required him not to quit the service of his employer sud- 
denly, and without reasonable notice of his intention to do so. But the vital 
question remains whether a court of equity will, under any circumstances, by 
in.iunction, prevent one individual fi'om quitting the personal service of an- 
other? An affirmative answer to this question is not, we think, justified by 
any authority to which our attention has been called or of which we are 
aware. It would be an invasion of one's natural liberty to compel him to 
work for or to remain in the personal service of another. One who is placed 
under such constraint is in a condition of involuntary servitude — a condition 
which the supreme law of the land declares shall not exist within the United 
States, or in any place subject to their jurisdiction. Courts of equity have 
sometimes sought to sustain a contract for services requiring special knowl- 
edge or skill by enjoining acts or conduct that would constitute a breach of 
such contract. 



REGULATION OF USTJUISTCTIONS. ' 9 

The rule, we think, is without exception that equity will not compel the 
actual, affirmative performance by an employee of merely personal services, 
any more than it will compel an employer to retain in his personal service 
one who, no matter for what cause, is not acceptable to him for service of 
that character. The right of an employee engaged to perform personal service 
to quit that service rests upon the same basis as the right of his employer to 
discharge him from further personal service. If the quitting in the one case 
or the discharging in the other is in violation of the contract between the 
parties, the one injured by the breach has his action for damages ; and a court 
of equity will not, indirectly or negatively, by means of an injunction restrain- 
ing the violation of the contract, compel the affirmative performance from 
day to day or the affirmative acceptance of merely personal services. Relief 
of that character has always been regarded as impracticable. 

Sitting with Justice Harlan at circuit in that case were other 
learned jurists, but there was no dissent from these views. 

In this connection we cite from the luminous opinion by Judge 
Loring delivering the opinion in Pickett v. Walsh (192 Mass., 572), 
a clear exposition of our vicAvs here expressed. We regret the neces- 
sity of limiting the quotation, because the whole opinion could be 
studied with profit. 

The case is one of competition between the defendant unions and the indi- 
vidual plaintiffs for the work of pointing. The work of pointing for which 
these two sets of workmen are competing is work which the contractors are 
obliged to have. One peculiarity of the case, therefore, is that the fight here 
is necessarily a triangular one. It necessarily involves the two sets of com- 
l)etiug workmen and the contractor, and is not confined to the two parties to 
the contract, as is the case where workmen strike to get better wages from 
their employer or other conditions which are better for them. In this respect 
the case is like Mogul Steamship Co. v. McGregor (23 Q. B. D., 598; S. C, on 
appeal (1892) ; A. C, 25). 

The right which the defendant unions claim to exercise in carrying their 
point in the course of this competition is a trade advantage, namely, that they 
have labor which the contractors want, or, if you please, can not get elsewhere ; 
and they insist upon using this trade advantage to get additional work, namely, 
the work of pointing the bricks and stone which they lay. It is somewhat 
like the advantage which the owner of back land has when he has bought the 
front lot. He is not bound to sell them separately. To be sure, the right of an 
individual owner to sell both or none is not decisive of the right of a labor union 
to combine to refuse to lay bricks or stone unless they are given the job of 
pointing the bricks laid by them. There are things which an individual can do 
which a combination of individuals can not do. But having regard to the right 
on which the defendfints' orgaiiization as a labor anion rests, the correlative 
duty owed by it to others, and the limitation of the defendants" rights coming 
from the increased power of organization, we are of 'opinion that it was within 
the rights of these unions to compete for the work of doing the pointing and, 
in the exercise of their right of competition, to refuse to lay bricks and set stone 
unless they were given the work of pointing them when laid. (See in this 
connection Plant v. Woods, 176 Mass., 492, 502; Berry v. Donovan. 188 Mass., 
853, 357.) 

The result to which that conclusion brings us in the case at bar ought not to 
be passed without consideration. 

The result is harsh on the contractors, who prefer to give the work to the 
pointers, because (1) the pointers do it by contract (in which case the con- 
tractors escape the liability incident to the relation of employer and employee) ; 
because (2) the contractors think that the pointers do the work better, and if 
not well done the buildings may be permanentlj^ injured by acid; and, finally, 
(8) because they get from the pointers better work with less liability at a 
smaller cost. Again, so far as the pointers (who can not lay brick or stone) 
are concerned, the result is disastrous. But all that the labor unions have done 
is to say you must employ us for all the work or none of it. They have not 
said that if j^ou employ the pointers you must pay us a fine, as they did in 
Carew v. Rutherford (106 Mass., 1). They have not undertaken to forbid the 
contractors employing pointers, as the34, did in Plant v. Woods (176 Mass., 492). 
So far, as the labor unions are concerned, the contractors can employ pointers 
if they choose, but if the contractors choose to give the work of pointing the 



10 REGULATION OF 12^ JUNCTIONS. 

bricks and stones to otliers tlie uuions take the stand that the contractors will 
have to get some one else to lay them. The effect of this in the case at bar 
appears to be that the contractors are forced against their will to give the work 
of pointing to the masons and bricklayers. But the fact that the contractors 
are forced to do what they do not want to do is not decisive of the legality of 
the labor union's acts. That is true wherever a strike is successful. The con- 
tractors doubtless would have liked it better if there had been no competition 
between the bricklayers' and masons' unions on the one hand and the individual 
pointers on the other hand. But there is competition. There being competition, 
they prefer the course they have taken. They prefer to give all the work to the 
unions rather than get nonunion men to lay bricks and stone to be pointed by 
(.he plaintiffs. 

Further, the effect of complying with the labor unions' demands apparently 
will be the destruction of the plaintiff's business. But the fact that the busi- 
ness of a plaintiff" is destroyed by the acts of the defendants done in pursuance 
of their right of competition is not decisive of the illegality of the acts. It 
was well said by Hammond, J., in Martell v. White (1S5 Mass., 255, 260) in 
regard to the right of a citizen to pursue his business without interference 
by a combination to destroy it : " Speaking generally, however, competition 
in business is permitted, although frequently disastrous to those engaged in it. 
It is always seifish. often sharp, and sometimes deadly." 

The application of the right of the defendant unions, who are composed of 
bricklayers and stonemasons, to compete with the individual plaintiffs, who can 
do nothing but pointing (as we have said) is in the case at bar disastrous to 
the pointers :ind hard on the contractors. But this is not the first case where 
the exercise of the right of competition ends in such a result. The case at bar 
is an instance where the evils which are or may be incident to competition 
bear very harshly on those interested, but in spite of such evils competition 
is necessary to the welfare of the community. 

To the same effect is Allis-Chalmers Co. v. Iron Holders' Union 
(C. C.) (150 Fed. Eep., 155), per Sanborn, J. 

The consensus of judicial view, as expressed in these cases and 
others which might be cited, is that workijigmen may lawfully com- 
bine to further their material interests without limit or constraint, 
and may for that purpose adopt any means or methods which are 
lawful. It is the enjoyment and exercise of that right and none 
other that this bill forbids the courts to interfere with. 

The second clause : 

Or from attending at or near a house or place where any person resides or 
works, or carries on business, or happens to be for the purpose of peacefully 
obtaining or communicating information, or of peacefully persuading any per- 
son to work or to abstain from working. 

This language is taken from the British trades dispute act of 
1906, the second section of which is as follows : 

It shall be lawful for one or more persons acting on their own behalf or on 
behalf of an individual, corporation, or firm in contemplation or furtherance 
of a trade dispute to attend at or near a house or place where a person resides 
or works or carries on business or happens to be if they so attend merely for 
the purpose of peacefully obtaining or communicating information or of peace- 
fully persuading any person to work or abstain from work. 

This, it has been said, " might well be termed a codification of the 
law relating to peaceful picketing as laid down by a majority of the 
American courts." (Martin's Law of Labor Unions, sec. 173.) Upon 
the general subject the same author says: 

There are some decisions which hold that all picketing is unlawful, and it 
has been said that from the very nature of tblngs peaceful picketing is of rare 
occurrence and " very much of an illusion," yet the view taken by the majority 
of decisions and which is best supported by reason is that picketing, if not 
conducted in such numbers as will of itself amount to intimidation, and when 



EEGULATION OF IN JUNCTIONS. ll 

confined to the seeking of information such as the number and names and 
places of residence of those at work or seeking work on the premises against 
which the strike is in operation, and to the use of peaceful argument and en- 
treaty for the purpose of procuring such workmen to support the strike by 
quitting work or by not accepting work, is not unlawful, and will furnish no 
ground for injunction or an action at law for damages. * "■= * That the 
views set forth in this section are correct does not admit of doubt. Indeed, it 
may readily be seen that the right almost universally conceded to striking work- 
men to use peaceable argument and persuasion to induce other workmen to 
aid them in their strike might, and very probably would be, most seriously 
hampered if the right of picketing were denied. " The right to persuade new 
men to quit or decline employment is of little worth unless the strikers may 
ascertain who are the men that their late employer has persuaded or is at- 
tempting to persuade to accept employment." While it is true that in the 
guise of picketing strikers may obstruct and annoy the new men, and by insult 
and menacing attitude intimidate them as effectually as bj' physical assault, 
yet it can always be determined from the evidence whether the efforts of the 
pickets are limited to getting into communication with the new men for the pur- 
pose of presenting arguments and appeals to their free judgment- (Martin's 
Modern Law of Labor Unions, sec. 169, pp. 233, 234, and 235.) 

The third clause: 

Or from ceasing to patronize or to employ any party to such dispute ; or from 
recommending, advising, or persuading others by peaceful means so to do. 

The best opinion to be gathered from the conflicting opinions on 
this matter have been well summarized in the most recent textbook 
on the subject as follows: 

It is lawful for members of a union, acting by agreement among themselves, 
to cease to patronize a person against whom the concert of action is directed 
when they regard it for their interest to do so. This is the so-called " primary 
boycott," and in furtherance thereof it is lawful to circulate notices among the 
members of the union to cease patronizing one with whom they have a trade 
dispute and to announce their intention to carry their agreement into effect. 
For instance, if an employer of labor refuses to employ union men the union 
has a right to say that its members will not patronize him. A combination 
between persons merely to regulate their own conduct and affairs is allowable, 
and a lawful combination though others may be indirectly affected thereby. 
And the fact that the execution of the agreement may tend to diminish the 
profits of the party against whom such act is aimed does not render the partici- 
pants liable to a prosecution for a criminal conspiracy or to a suit for injunc- 
tion. Even though he sustain financial loss, he will be without remedy, either 
in a court of law or a court of equity. So long as the primary object of the 
combination is to advance its own interests and not to inflict harm on the per- 
son against whom it is directed, it is not possible to see how any claim of 
Illegality could be sustained. (Martin's Modern Law of Labor Unions, pp. 107, 
108, and 109.) 

It is not unlawful for members of a union or their sympathizers to use, iu 
aid of a justifiable strike, peaceable argument and persuasion to induce cus- 
tomers of the person against whom the strike is in operation to withhold their 
patronage from him, although their purpose in so doing is to injure the busi- 
ness of their former employer and constrain him to yield to their demands, and 
the same rule applies where the employer has locked out h's employees. These 
acts may be consummated by direct communication or through the medium 
of the press, and it is only when the combination becomes a conspiracy to in- 
jure, by threats and coercion, the property rights of another that the power 
of the courts can be invoked. The vital distinction between combinations of 
this character and boycotts is that here no coercion is present, while, as was 
heretofore shown, coercion is a necessary element of a boycott. In applying 
the principles stated it has been held that the issuance of circulars by members 
of a labor union notifying persons engaged in the trade of controversies existing 
between such members and their employer and requesting such persons not to 
deal with the employer is not unlawful and will not be enjoined wliere no in- 
timidation or violence is used. (Martin's Modern Law of Labor Unions, pp. 
109 and 110.) 

Said Mr. Justice Van Orsdel in his concurring opinion in Court of 
Appeals of the District of Columbia (the American Federation of 



12 REGULATION OF INJUNCTIONS. 

Labor et al., appellants, v. the Buck's Stove & Range Co., No. 1910, 
Decided Mar. 11, 1909) : 

Applying the same principle. I conceive it to be tlie privilege of one man, or a 
number of men, to individually conclude not to patronize a certain person or 
corporation. It is also the right of these men to agree together, and to advise 
others, not to extend such patronage. That advice may be given by direct 
communication or through the medium of the press, so long as it is neither in 
the nature of coercion or a threat. 

As long as the actions of this combination of individuals are lawful, to this 
point it is not clear how they can become unlawful because of their subsequent 
acts directed against the same person or corporation. To this point there is no 
conspiracy — no boycott. The word " boycott " is here used as referring to what 
is usually understood as " the secondary boycott," and when used in this opin- 
ion it is intended to be applied exclusively in that sense. It is, therefore, only 
when the combination becomes a conspiracy to injure by threats and coercion 
the property rights of another that the power of the courts can be invoked. 
This ])oint must be passed before the unlawful and unwarranted acts which 
the courts will punish and restrain are committed. 

The definition of a boycott given by Judge Taft in Toledo Co. v. Penna. Co. 
(54 Fed.. 730) is as follows: "As usually understood, a boycott is a combina- 
tion of many to cause a loss to one person by coercing others against their will 
to withdraw from him their beneficial business intercourse through threats 
that, unless those others do so, the many will cause similar loss to them." 
In Gray v. Building Trades Council (91 Minn., 171) the word "boycott" is 
defined as follows: "A boycott may be defined to be a combination of several 
persons to cause a loss to a third person by causing others against their will 
to withdraw fi'om him theiv beneficial business intercourse through threats that 
unless a compliance with their demands be made the persons forming the combi- 
nation will cause loss or injury to him, or an organization formed to exclude .-i 
person from business relations with others by persuasion, intimidation, and 
other acts which tend to violence, and thereby cause him through fear of re- 
sulting injury to submit to dictation in the management of his affairs. Such 
acts constitute a conspiracy and may be restrained by injunction." In Brace 
Brothers v. Evans (3 R. & Corp. L. J., 561) it is said: "The word itself implies 
a threat. In popular acceptation it is an organized effort to exclude a person 
from business relations with others by persuasion, intimidation, and other acts 
which tend to violence, and they coerce him, through fear of resulting injury, to 
submit to dictation in the management of his affairs." 

It will be observed that the above definitions are in direct conflict with the 
earlier English decisions and indicate a distinct departure by our courts. This 
luidoubtedly is in recognition of the right of a number of individuals to combine 
for the purpose of improving their condition. The rule of the Englsh common 
law, from which we have so far departed, is expressed in Bowen v. Hall (6 
Q. B. Div., 333) as follows: " If the persuasion be used for the indirect purpose 
or injuring the plaintiff, or of benefiting the defendant at the expense of the 
plaintiff, it is a malicious act. which is in law and in fact a wrong act. and 
therefore a wrongful act, and therefore an actionable act if injury ensues 
from it." 

From this clear distinction it will be observed that there is no boycott until 
the members of the organization have passed the point of refusing to patronize 
the person or corporation themselves and have entered the field where, by 
coercion or threats, they prevent others from dealing with such persons or cor- 
poration. I fully agree with this distinction. 

So long, then, as tlie American Federation of Labor and those acting undn* 
its advice refused to patronize complainant, the combination had not arisen to 
the dignity of an unlawful conspiracy or a boycott. 

In Hopkins v. Oxley vStave Co. (83 Fed. R.. 912), Judge Caldwell, 
in a dissenting opinion, said : 

While laborers, by the application to them of the doctrine we are considering, 
are reduced to individual action, it is not so with tlie forces arrayed against 
them. A corporation is an association of individuals for combined action ; 
trusts are corporations combined together for the very purpose of collective 
action and boycotting: and capital, which is the product of labor, is in itself 
a powerful collective force. Indeed, accoi'diug to this supposed rule, every 



EEGULATION OF INJUNCTIONS. 13 

corporation and trust in the country is an unlawful combination, for wliile 
its business may be of a kind tbat its individual members, each acting for 
himself, might lawfully conduct, the moment they enter into a combination 
to do that same thing by their combined effort, the combination becomes an 
unlawful conspiracy. But the rule is never so applied. 

Corporations and trusts and other combinations of individuals and aggre- 
gations of capital extend themselves right and left through the entire com- 
munity, boycotting and inflicting irreparable damage upon and crushing out 
all small dealers and producers, stifling competition, establishing monopolies, re- 
ducing the wages of the laborer, raising the price of food on every man's table, 
and of the clothes on his back and of the house that shelters him, and inflict- 
ing on the wage earners the pains and penalties of the lockout and the black 
list, and denying to them the right of association and combined action by 
refusing employment to those who are members of labor organizations; and 
all these things are justified as a legitimate result of the evolution of industries 
resulting from new social and economic conditions, and of the right of every 
man to carry on his business as he sees fit, and of lawful competition. On the 
other hand, when laborers combine to maintain or raise their Avages or other- 
wise to better their condition or to protect themselves from oppression or to at- 
tempt to overcome competition with their labor, or the products of their labor 
in order that they may continue to have employment and live, their action, 
however open, peaceful, and orderly, is branded as a " conspiracy." What is 
" competition " wben done by capital is " conspiracy "" when done by laborers. 
No amount of verbal dexterity can conceal or justify this glaring discrimination. 
'If the vast aggregation and collective action of capital is not accompanied bj" 
a corresponding organization and collective action of labor, capital wili 
speedily become proprietor of the wage earners as well as the recipient of the 
profits of their labor. This result can only be averted by some sort of organiza- 
tion that will secure the collective action of wage earners. This is demanded, 
not in the interest of wage earners alone, but by the highest considerations of 
public policy. 

In Vegelahn v. Gimter (167 Mass., 92) Justice Holmes, now of 
the Supreme Court of the United States, delivering the opinion, 
said : 

It is plain from the slightest consideration of practical affairs, or the most 
superficial reading of industrial history, that free competition means combina- 
tion, and that the organization of the world, now going on so fast, means an 
ever-increasing might and scope of combination. It seems to me futile to set 
our faces against this tendency. Whether beneficial on the whole, as I think it 
is, or detrimental, it is inevitable, unless the fundamental axioms of society 
and even the fundamental conditions of life are to be changed. One of the 
eternal conflicts out of which life is made up is that betAveen the effort (tf 
every man to get the most he can for his services and that of society, dis- 
guised under the name of capital, to get his services for the least possible 
return. Combination on the one side is potent and powerful. Combination 
on the other is a fair and equal way. * * * If it be true that the work- 
ingmen may combine with a view, among other things, to getting as much 
as they can for their labor, just as capital may combine with a view to get- 
ting the greatest possible return, it must be true that when combined they have 
the same liberty that combined capital has, to support their interest by argu- 
ment, persuasion, and the bestowal or refusal of those advantages which they 
otherwise lawfully control. 

The logic of Justice Sherwood, of the Supreme Court of Missouri, 
in Marx & Haas Co. v. Watson (56 L. K. A., 951), appears unan- 
swerable. He discussed the question from a constitutional stand- 
point, taking for his test the Missouri bill of rights, substantially 
the same as the first amendment to the Federal Constitution, saying 
(p. 956) : 

The evident idea of that section is penalty or punishment, and not prevention, 
because if prevention exists, then no opportunity can possibly arise for one 
becoming responsible by saying, writing, or publishing " whatever he will on 
any subject." The two ideas — the one absolute freedom " to say, write, or 
publish whatever he will on any subject," coupled with responsibility therefor, 
and the other idea of preventing any such free speech, free writing, or free 
publication — can not coexist. 



14 begulahox of ixjuxcnoifs. 

The opinion continues, after citing authorities. Federal and State, 
as follows: 

Section 14. scpra. msikes no disrinction and antborizes no difference to be 
made by coorts or legislatures b^ween a proceeding set on foot to enjoin tile 
poblication of a libel and 4Hie to enjoin the publication of any otb^' sort or 
nature, bowery- injurious it may be, or to probibit tbe use of free speech or 
fi«e writinff on any subject wbatever. because wb^^ever the authority of in- 
junction b^ins there the ri^it of free speech, free writing, or free publica- 
ticm «ids. Xo halfway bouse stands on the highway between absolute pre- 
vaiti<Hi and absolute freedom. 

The fourth clause: 

Or from paying or giving to or withholding from any p»^on oigaged in such 
dispute any strike b^i^ts or otfaa- moaQrs or things of ralue. 

In at least two instances State courts (ReTnolds r. Davis. 198 
iilass.. 2^. and A. S. Barnes & Co. v. Chicago Typographical Union, 
232 HL. 424) hare held that if the purpose of a strike was un- 
lawful the t^oers and members of unions should be enjoined from 
giving financial aid in the form of strike benefits in furtherance 
thereof. But in the oolx case of the kind disposed of by a Federal 
court an entirely different conclusion was reached. In A. S. Barnes & 
Co. r. Berry (157 Fed. B-. 883) it was held without exception or 
qualification that an employer against whom a strike was in oj)erati<m 
could not have enjoined the ojflicers of a union from giving its 
striking members sbdke benefits. The reason assigned was that — 

the strike ben^Bt fund is created by mon^rs dqioated by the m«i with the 
graseral <^&<cers for tbe support of themselves and families in times of strike, 
and Hie court has no more control of It than it would have over d^ioats made 
1^ fbean In Hne banks. 

This decision is in harmony with two recent English decisions — 
Denabev. etc.. CoUieries v. Yorkshire Miners" Assn. » 75 L. J. K. B.. 
aS4) : Lyons r. AVilkins (67 L. J., ch. 3S:3>. 

The fifth and sixth clauses : 

Or from peaceably asembling at any pdace in a lawrci manner and for 
lawful pnrpoees : or from doing any act or thing which mi^t lawfully be done 
in flie alienee of such dispute by any party thoreto. 

After all that can be asserted against the provisions of section 
266c, or any provision of the bill elsewhere found has been said, we 
can truly ^y that it does not transcend or contravene the dear and 
conclusive statement of the law as stated in National Fireproofing 
Co. r. Mason Builders Assn. (169 Fed. Bep., 260). Delivering the 
opinion of the court in that case. Judge Noyes said (p. 265) : 

As a gHieral rule it may be stated, that when tlie chief object of a com- 
binaticra Is to injure or oppress third pei^ons. it iB a conspiraQr : but that when 
SDCli injury or appressisa is ma^ly Jncidanial to flie carrying out of a lawful 
poipoeeu it Is not a cxmspmic^. Stated in another way : A combination, Altered 
into tar the real malicious purpose of injuring a third person in his business 
or pr(q»erty. may amosnt to a cmij^iracy and furnish a gromid of action for 
damages sustained or call for an injunction, even thou^ formed for the 
cs^eosible purpose of ben^tlng its nmnbers. and actually operating to some 
extent to tbrar advantage. But a oombinatwm witliont sich ulterior oi^ressive 
object entoed into merely for the purpose of promoting by lawful means the 
Gonunon i nter es ts of its membo^ is not a con^iracy. A laboro'. as w^ as 
a bnHder. tradn*, or manufacture, has the tight to conduct lus aflbirs in 
any lawful manao*, even thou^ he may Oiexeby injure othra^ So serfxal 
laborers and builders may combine for mutual advantage, and so long as the 
mottve is not malicious, the object not unlawful nor oppresaxe, and the means 
neither deceitful nor ftandnlpnt, the resnlt Is not a coospiz&cy, although it may 
neeesearHy work injury to oOtex persons. The damage to such persons may 



EEGULATIOX OF IXJUXCTIOXS. 15 

be serious — it may even extend to their ruin — ^but if it is inflicted by a com- 
bination in the legitimate pursuit of its own affairs, is a damnum absque injuria. 
Tlie damage is present, but the unlawful object is absent. And so the essential 
question must always be, whether the object of a combination is xo do harm 
to others or to exercise the rights of the parties for their own benefit. 

Any attack upon the policy of this section of the bill must be 
directed at its specijQc prohibitions: nor will any mere general criti- 
cism, or any attack which does not particularize herein, be worthy 
of serious attention. The ready and perfect defense to all such is 
at hand, and imposes no diffictilt task. Is there any reason why the 
complainant, seeking an injunction against workingmen. shotild not 
describe with particularity in his cause of complaint the nature of the 
threatened injury, and the property or property right involred, as 
in other cases? Is there any reason why an injunction should issue 
at all involving or growing out of the relation created between em- 
ployer and employee to prevent the termination of the relation, or 
advising and persuading others to do so. or to prevent the unre- 
stricted communication and exchange of information l3etween per- 
sons, or the giving of aid by financial contributions in any labor 
affair or dispute? Is there any reason, after a labor dispute has 
arisen and a socially hostile attitude has been created, for an injunc- 
tion to prevent abstinence in patronizing or service by one party for 
the other's benefit, or the exercise of the right of free speech in ad- 
vising or inducing such abstinence on the part of others i Is there, 
in short, any good reason why. after a dispute has arisen and the 
parties are " at arms length." a court of eqtiity should interpose its 
strong arm merely because such dispiue has arisen ] 

At its hearings the committee had the benefit of learned and 
illtiminating arguments against the several bills. Coimsel in oppo- 
sition were patiently and respectfully heard, and the committee 
profited largely by having heard them, as is shoTvn by the results 
of its labors. The bill does not interfere with the Sherman Antitrust 
Act at all: it leaves the law of conspiracy untouched, and is not 
open to effective criticism on any constitutional groimd. The sub- 
ject of the constitutionality of such legislation was exhausted at the 
hearings on the contempt bill (H. R. 22591). retiu'ned to the House 
with a separate report in which all constitutional objections are fully 
met. 

XO QtmSTIOX or COXSTITTTIOXALITY 1XV0L^'ED. 

This bill does not. any more than does the contempt bill, invade 
the jurisdiction of the courts or attempt legislatively to exercise a 
judicial function. It merely limits and circumscribes the remedy 
and procedtire. TThile we here enter into no elaborate discussion 
of the atithorities on this topic, yet. for convenience of reference, we 
insert a synopsis. On point of inconsistency between our theory of 
government and exercise of arbitrary power see lick TTo v. Hop- 
kins (lis U. S. Eep.. o()9). For a case in which Congress was held 
to have constitutionally exercised power to take away all remedy 
see Finck v. O'Xeill (106 U. S.. 272') : and for a case where a statiue 
taking away the power to issue an injunction in a certain case wherein 
the jurisdiction had been previously held and exercised was recog- 
nized without question as of bidding force see Sharon v. Terry (36 
Fed. Eep.. 365). For a general statement of the proposition that 



16 EEGULATIOX OF INJUNCTIONS. 

the inferior courts of the United States are all limited in their nature 
and constitutions and have not the powers inherent in courts existing 
by prescription or by the common laAV see Caiy ''. Curtiss (3 How. 
(U. S.). 236. 254). The same principle still more elaborately stated 
and applied. Ex parte Robinson (19 AVall. (U. S.), 505). 

Many decisions on the question of injunctive process and juris- 
diction in labor cases are greatly influenced by, and, indeed, some- 
times founded upon, precedents established when to be a wage earner 
was to be a servant Avhose social and legal status was little above that 
of slavery-. But even England has preceded us in new views and 
policies herein. The English act of 1906, set forth at length in the 
hearings, goes farther than it has yet been deemed possible to go in 
thi*^ country in relieving labor, and especially organized labor, of 
legal burdens and discriminations. The Supreme Court has more 
than once protested against attempts by any branch of the Govern- 
ment to exercise arbitrary power, and the courts should, and probably 
will, welcome the definite limitations contained in this bill if it 
should be enacted. 

The idea has been advanced, and ably supported in argument, by 
one of the proponents of this legislation that liberty, and more of it, 
is safe in the hands of the workingmen of the country. We are con- 
vinced of the merit and truth of that contention. The tendency 
toward freedom and liberation from legal trammels and impedi- 
ments to progress and to a great social advance is seen in nearly all 
civilized nations. It is an unpropitious time to oppose a reform like 
that embodied in this bill, in view of the fact that the abuses of power 
which it seeks to terminate have been, admittedly, numerous and 
flagrant. 

[H. R. 23635, Sixty-second Congress, second session.] 
In the House of Representatives, April 22, 1912. 

Mr. Clayton introduced the following bill; which was I'eferred to the Committee 
on the Judiciary and ordered to be printed. 

A BILL To amend an act entitled "An act to codify, revise, and amend the 
laws relating to the judiciary," approved March third, nineteen hundred 
and eleven. 

Be it enacted hy the Senate and House of ReiJieseittatives of the United 
States of America in Congress assembled, That section 2G3 of the act entitled 
"An act to codify, revise, and amend the laws relating to the judiciary," ap- 
proved March third, nineteen hundred and eleven, be, and the same is hereby, 
amended so as to read as follows, and that said act be further amended by in- 
serting after section 266 thereof three new sections, to be numbered, respec- 
tively, 266a. 266b, 266c. reading as follows: 

" Sec. 263. That no injunction, whether interlocutory or permanent, in cases 
other than those described in section 266 of this title, shall be issued without 
previous notice and an opportunity to be heard on behalf of the parties to be 
enjoined, which notice, together with a copy of the bill of complaint or other 
pleading upon which the application for such injunction will be based, shall 
be served upon the parties sought to be enjoined a reasonable time in advance 
of such application. But if it shall appear to the satisfaction of the court or 
judge that immediate and irreparable injui-y is likely to ensue to the complain- 
ant, and that the giving of notice of the application or the delay incident thereto 
would probably permit the doing of the act sought to be restrained before 
notice could be served or hearing had thereon, the court or judge may, in his 
discretion, issue a temporary restraining order without notice. Every such order 



EEGULATION OF INJUNCTIONS. 17 

Shall be indorsed with the date and hour of issuance, shall be forthwith en- 
tered of record, shall define the injury and state why it is irreparable and why 
the order was granted without notice, and shall by its terms expire within such 
time after entry, not to exceed seven days, as the court or judge may fix, un- 
less within the time so fixed the order is extended or renewed for a like 
period, after notice to those previously served, if any, and for good cause 
shown, and the reasons for such extension shall be entered of record. 

" Sec. 266a. That no restraining order or interlocutory order of injunction 
shall issue except upon the giving of security by the applicant in such sum as 
the court or judge may deem proper, conditioned upon the payment of such 
costs and damages as may be incurred or suffered by any party who may be 
found to have been wrongfully enjoined or restrained thereby. 

" Sec. 266b. That every order of injunction or restraining order shall set 
forth the reasons for the issuance of the same, shall be specific in terms, and 
shall describe in reasonable detail, and not by reference to the bill of complaint 
or other document, the act or acts sought to be restrained ; and shall be binding 
only upon the parties to the suit, their agents, servants, employees, and at- 
torneys, or those in active concert with them, and who shall by personal service 
or otherwise have received actual notice of the same. 

" Sec. 266c. That no restraining order or injunction shall be granted by any 
court of the United States, or a judge or the judges thereof, in any case 
between an employer and employees, or between employers and employees, or 
between employees, or between persons employed and persons seeking employ- 
ment, involving or growing out of a dispute concerning terms or conditions 
of employment, unless necessary to prevent irreparable injury to property or to a 
property right of the party making the application, for which injury there is no 
adequate remedy at law, and such property or property right must be described 
with particularity in the application, which must be in writing and sworn to 
by the applicant or by his agent or attorney. 

"And no such restraining order or injunction shall prohibit any person or 
persons from terminating any relation of employment, or from ceasing to per- 
form any work or labor, or from recommending, advising, or persuading others 
by peaceful means so to do; or from attending at or near a house or place 
where any person resides or works, or carries on business, or happens to be 
for the purpose of peacefully obtaining or communicating information, or of 
peacefully persuading any person to work or to abstain from working ; or from 
ceasing to patronize or to employ any party to such dispute; or from recom- 
mending, advising, or persuading others by peaceful means so to do; or from 
paying or giving to or withholding from any person engaged in such dispute 
any strike benefits or other moneys or things of value; or from peaceably 
assembling at any place in a lawful manner and for lawful purposes ; or from 
doing any act or thing which might lawfully be done in the absence of such 
dispute by any party thereto." 

o 

H. Rept. 612, 62-2 2 



62d 



'u^S^^^r' \ ™^^^^ ^^ i^EPEESExNTATIVES. , Kept. 612, 
====1= L^^_ I Par t 2. 

REGULATION OF INJUNCTIONS. 

May 3, 1912. -Ordered to be printed. 



Mr. Moon of Pennsylvania, from' the ^Committee on the Judiciary 
submitted the following as the 

VIEWS OF THE MINORITY. 

[To accompany H. R. 23635.] 

^^".Cfit^tuB^tlzi^^^^^^ Committee, to whom 

&1^;to s:j?>^,ronr-r*-- -^ -— " «-'- 

biinntends'to'coSLr-'^tre t^""" 7''^'''^ "' ?- -'"-i"'^«> 'tis 
issu.nertlthourner*;rerur5'ors7S»dT^^^^^ rT "^? 

Iterated and reiterated before consTp^ainnal ,.r,v.,m:*t„ i-"<»ige!> 
abuses in the issuance of injunctior We h«ve n„^?„ T """^mg 
evidence to support them ii the pa't thin w^^or find Tn'tWreTort 
o L^uS'states'^'tSr"?'^'^ ''f'^'' 7'^ t^e Supreme cC 
in a cas"rlonab^ free fromTub f"w?thinl''' T°*f ^"^^^1 

determine Its application in m^ny instances by the character of tlS 



2 REGULATION OF INJUNCTIONS. 

port is founded upon a misconception of the coui-se of judicial deci- 
sion respecting statutes regulating the issuance of injunctions, and 
that the legislation proposed is impracticable, invalid, in the inter- 
ests of a class rather than of the community, and proposes standards 
of legality without parallel or precedent in our legislation. 

To make our position clearer, we consider the bill in the order 
pureued in Report No. 612: 

I. 

Preliminary to a discussion of the bill, the majority gives an his- 
torical resume of legislation respecting notice in injunction cases. 
We believe essential elements of that history have not received the 
consideration deserved from the majority, and we must disagree 
with them respecting conclusions drawn from both the legislation 
and judicial decisions of the past respecting that legislation. 

On the 2d of March, 1793, was enacted legislation of which the 
following was a part: 

Nor shall any writ of injunction issue in any case without reasonable previous no- 
tice to the adverse party or his attornev of the time and place of moving the same. 
(Ch. 22, vol. 1, U. S. Stat. L., p. 534.)^ 

The majority concludes: 

The will of Congress as thus expressed was completely thwarted and the statute 
nullified by the peculiar construction placed upon it by the courts. 

It appears to us the majority and not the courts, have miscon- 
strued the will of Congress. They overlook, as the court did not, 
the distinction described in all authoritative textbooks, familiar to 
every lawyer and pointed out with striking distinctness by the courts, 
between restraining orders intended to preserve the status quo to pro- 
tect the subject matter of litigation and the preliminary and final 
injunctions which are issued, if at all, after hearing upon the applica- 
tion for the equitable remedy. That the statute in question should 
not be construed to prevent the issuance of restraining orders was 
natural and inevitable. It was a practice recognized by the English 
chancery from time immemorial. The early English textbooks speak 
of it as well understood and essential, as, for instance, Eden on 
Injunctions, 1821; Adams Equity, 1845. 

Had the court construed the act of Congress to forbid the preserva- 
tion of the subject matter of litigation until the respective rights of 
the litigants could be adjudicated, it would have obviously given a 
construction against the very essentials of justice. Indeed, the 
majority recognizes and admits this by its own proposal, for while it 
criticizes the construction which permits the issuance of restraining 
orders without notice under special circumstances it provides in sec- 
tion 263 of its own bill for the doing of the very thing which it criti- 
cizes the courts for having done. 

We call attention to the English practice, because it was early held 
respecting the judicial power of the courts of the Union in equity that: 

The usages of the high court of chancery in England whenever the jurisdiction is 
exercised govern the proceedings. This may be said to be the common law of chan- 
cery, and since the organization of the Government it has been observed. (Penn. v. 
Wheeling, etc.. Bridge Co., 13 How., 563; Meade v. Beale, 1 Campbell's Reports, 339, 
C. C. M. D. Tawney, 1850; Loring et al. v. Marsh, 2 Clifford's Reports, 469.) 



EEGULATION OF INJUNCTIONS. 6 

Thus, the courts did not "get around" the statute, as is suggested 
by the majority, but construed it in accordance with an immemorial 
practice of iinglish jurisprudence which recognized the necessity of 
issuing restrainmg orders under special circumstances that the court 
might preserve the status quo, protect the subject matter of litiga- 
tion, and preserve from destruction that upon which it was to pass 
judgment. 

The report implies that the case of New York v. Connecticut (4 
Dall., 1) upheld a construction which forbade the issuance of even 
restraining orders without notice. That issue is not presented in 
that case decided in 1799. The practice was fh'st recognized four 
years before in the case of Schermerhorn v. L'i spenasse (2 Dall., 360). 
In this case the defendants, merchants of Amsterdam, had executed 
to the complainant power of attorney to receive for his own use the 
interest due on $180,000 of certificates of the United States, bearing 
interest at 6 per cent from the 1st of January, 1788, to the 31st of 
December, 1790, amountin.g to $32,400. Notwithstanding this 
assignment, the defendants, on the 16th of June, 1792, received cer- 
tificates for the interest and funded the amount at 3 per cent in 
their own names. The bill prayed relief according to the equity of 
the case and a restraining order to prevent the defendants from 
transferring the stock or receiving the principal or interest. On the 
bill exhibited of the power of attorney and affidavits to the effect 
that the stock was registered in the name of the defendants on the 
books of the Treasurer the restraining order was granted. No sub- 
poena was served until Mr. Lewis, on behalf of the defendants, moved 
for a rule to show cause why the injunction should not be dissolved. 
The motion was refused. An examination of the record discloses 
that Mr. Lewis, counsel for the defendants, supported his motion for 
dissolution on two grounds: 

That the injunction was issued irregularly, as there was no affidavit made of the 
truth of the allegations contained in the bill. 

In supporting this he said: 

He did not object because the injunction was issued before a subpoena was served, 
as there were various cases in which justice could not otherwise be obtained. 

This proceeding was had two years after the passage of the statute 
of 1793 before a justice of the Supreme Court who had been a member 
of the Congress which had enacted the statute ; the hearing was held 
in a building adjoining that in which the act was parsed and in the 
same district where the Congress was sitting. It demonstrates as 
no other case can the well-recognized equity practice in relation to 
temporary restraining orders, and shows the construction placed upon 
the statute by the profession and the court. In the meantime the 
practice of issuing restraining orders without notice under special 
circumstances of necessity was approved through the exercise of the 
power by the highest authority, including various justices of the cir- 
cuit and district courts and Chief Justice Marshall (who is observed 
to issue an ex parte restraining order to prevent moneys alleged to 
have been improperly allowed by an administrator from being taken 
out of the country). (Green et al. v. Hanberry's Executors, 2 Brock- 
enbrough's Reports, 405, Nov., 1830; Love v. FendalFs Trustees, 1 
Cranch C. C, 34; Marsh et al.»v. Bennett, 5 McLean, 117; Crane v. 
McCoy, 1 Bond's Reports, 422; Mowrey v. Indianapolis & C. R. Co., 
17 Fed. Cas., 930.) 



4 EEGULATION OF INJUNCTIONS. 

Too much space would be taken by the enumeration of cases of this 
character, and those cited are merely offered as examples. 

Finally, during the debate upon the act of 1872, now section 263 of 
the Judicial Code, we find two of the most distinguished lawyers of 
the Senate expressing the recognized practice as follows : 

Mr. Carpenter. I understand if any judge having the jurisdiction by law to grant 
an injunction has presented to him a bill in equity, fortified with proofs which entitle 
the party by the acknowledged and usual practice of a court of equity to have an 
injunction, the judge has no discretion to deny it. 

Mr. Frelinghuysen. I think that elementary provision of the law even I may 
have been presumed to have heard and known of. 

Mr. Carpenter. Therefore I was astonished to hear the Senator deny it. 

Mr. Frelinghuysen. I did not deny it. (46 Congressional Globe, p. 2492.) 

Thus we find the practice respecting restraining orders recognized 
by Congress, by the courts, and the profession throughout the history 
of our Government and its necessity appreciated by the majority 
from its incorporation in this bill. Indeed, we believe the right to 
issue a restraining order upon a proper showing of its necessity to 
protect a right of a pecuniary nature against irreparable damage 
IS an essential part of the judicial power in equity. If a suitor 
over whom a court has jurisdiction b}^ a bill in that court discloses 
a state of facts where irreparable harm is threatened and where, if 
notice were given, irreparable damage would be done before hear- 
ing could be had or decree entered, were deprived by the legislature 
of the right to such a remedy, we believe it would be equivalent to 
a legislative determination in advance that under no circumstances 
can a plain tifi" disclose a threatened irreparable injury without 
adequate remedy at law demanding immediate equitable inter- 
vention. If the Congress undertakes arbitrarih^ to determine in 
advance what a suitor would otherwise be entitled to as due process 
of law in a court of equity, we believe he would be deprived of a 
guaranteed constitutional right. 

The first section of the bill, with one material exception, is almost 
an exact copy of a bill introduced in the Sixty-first Congress, known 
as the Moon bill. This bill was reintroduced in the present Congress, 
and was supported by the entire Republican membership of the 
Judiciary Committee. 

The exception referred to has reference to the provision for the 
expiration of a restraining order granted by the court %dthout notice. 
The Moon bill provided that the order should expire ""within such 
time after service is made or notice given, which shall be made or 
given as speedily as possible, not to exceed seven days, as the judge 
or court shall fix." The proposed bill provides that "it shall expire 
at such time after entry as the court or judge shall fix, not to exceed 
seven days," etc. 

A restraining order is of no effect until served, and under such a 
provision it would be only necessary for those having knowledge of 
the application to avoid service for seven days after the issuance of 
the order to defeat its purpose. We can conceive circumstances in 
which a few who might be served would notify other defendants to 
avoid it and on failure to make the order effective by service within 
seven days it would be necessary to give notice to all previously served 
before an extension of further time could be had. We can conceive of 
no more certain method of depriving a suitor of essential equitable 
protection. Many judicial districts of our country administer justice 



EEGULATION OF INJUNCTIONS. 5 

over vast areas in which the material circumstances of life must be 
taken into consideration. The proposal of this section is general. 
It applies to all forms of litigation, and in view of the physical as 
well as the personal difficulties attending the service of restraining 
orders under some circumstances we can not but believe that not 
only would many individual suitors suffer grievous injury, but we 
can from our public service and professional experience conceive many 
circumstances in which the public interest would be seriously jeopard- 
ized. All of these difficulties would be overcome if the restraining 
order should date from the time of service instead of the time of its 
entry. 

11. 

Section 266A provides that no restraining or interlocutory order 
shall issue except upon the giving of security against cost or damage. 

Under the present practice this is within the discretion of the 
court, and while we should not be disposed to disagree with such a 
suggestion, we must again note that no reason is given for the sug- 
gested change which implies a failure upon the part of the courts to 
properly exercise this discretion. No evidence to this effect has been 
at any time submitted to the committee, nor do the majority offer 
any evidence to that effect as a reason for their action. 

III. 

Section 266B requires every restraining order or every injunctive 
order "to set forth the reasons for the issuance of the same to be 
specific in terms and describe in reasonable detail, and not by refer- 
ence to the bill of complaint or other document the act or acts 
sought to be restrained;" it binds only the parties to the suit, ''their 
agents, servants, employees, and attorneys or those in active concert 
with them, and who shall by personal services or otherwise have 
received actual notice of the same." This section is of general 
application. In support of this provision the majority point out 
that it is to be a safeguard against "dragnet or blanket injunctions," 
by which parties may be punished for contempt after "only con- 
structive notice, equivalent in most cases to none at all." 

Again, the majority asserts conditions as a basis for proposed leg- 
islation which are both unproven and unprovable. Nothing is clearer 
in the field of jurisprudence than the requirement that a respondent 
on a contempt charge must have actual notice of the existence of an 
order which he is accused of violating and that the order must have 
been unmistakably brought to his attention. (Bessette v. -Conkey, 
194 U. S.) All the Debbs cases, both in the circuit and district courts 
and on appeal, actually confirm this statement. The majority offer 
in proof of the necessity of their proposal merely an implication un- 
warrantedly reflecting upon the judiciary and without supporting 
proof of any character. 

They have, moreover, properly provided in section 266 that every 
restraining order issued shall be accompanied by an entry stating the 
reasons for its issuance. It would be a useless waste of time to again 
set forth the reasons for the issuance of the order in the order itself, 
as is required by section 266B.'' Complaints are heard on every side 
against cumbersome and delaying procedure. This proposal multi- 



b KEGULATION OF INJUNCTIONS. 

plies the delays, difiiculties, and inconveniences of procedure indefi- 
nitely. It requires every order to be a history, to repeat in irrelevant 
and cumbersome detail all the preliminary pleadings, and instead of 
enlightening the parties against whom it was issued the form sug- 
gested and the procedure prescribed would increase his confusion and 
doubt. 

The majority point out that there is "no Federal statute to govern 
either the matter of making or form and contents of orders in injunc- 
tions," thereby inferring that this entire matter is left to the discretion 
or judgment of the judge granting the injunction. In this statement 
they entu'ely overlook the rules in equity of the Supreme Court of the 
United States binding upon all inferior Federal courts, prescribing 
with great minuteness and changed from time to time in accordance 
with the teaching of experience the forms of injunctive orders and for- 
bidding the ceaseless repetition in decrees and orders of the contents 
of bills of complaint. 

The effect of section 266B is to abolish the many rules in equity of 
the Supreme Court in conflict with it, representing the professional 
experience of a century, and amended from time to time to shorten 
procedure, increase the convenience, and protect the rights of liti- 
gants in the courts of the United States. The majority says sec- 
tion 266 does not change the best practice with respect to orders, but 
imposes the duty upon the courts in mandatory form to conform to 
correct rules as already established by judicial precedent. We 
res})ectfully submit that the equity rules of the Supreme Court 
express correct judicial precedents and that the majority have appar- 
ently overlooked this important fact. 

The bill as reported would A\ithdraw the application of the restrain- 
ing order from parties not named in it and not in agreement with 
the parties named who may on their own initiative undertake its 
violation. Such cases are not uncommon. If the majority intend 
to exempt such violations of the order, they have created an unusual 
and remarkably privileged class of lawbreakers ; if not, we are unable 
to discern the intention expressed in the limitation "in active concert 
\vith them." 

IV. 

The two paragraphs of section 266C must be read in connection 
with each other or their purpose and meaning are lost. The first 
paragraph provides that no judge or court of the United States shall 
issue any restraining order or injunction "in any case between an 
employer and employees, or between employers and employees, or 
between persons employed and persons seeking employment, involv- 
ing or growing out of a dispute concerning the terms or conditions 
of em])loyment, unless necessary to prevent irreparable injury to 
property or to a property right," etc. If this section is intended to 
withdraw civil rights from equitable protection in this class of cases, 
we must disapprove it as an evident effort to deny such protection 
as is given to civil rights in all other classes of cases, since it is axiomatic 
that it is the office of equitj to protect by injunction, under proper 
circumstances, civil and even personal as well as property rights. 
We object to the implication contained in emphasizing controversies 
between employers and employees, or between employees or persons 
employed and seeking employment, and if the majority intends by 



EEGULATION OF INJUNCTIONS. 7 

this to indicate that such rights are to have less or different protec- 
tion from the same rights when involving controversies of another 
kind we must emphatically disagree with the principle implied, for 
in this country remedies are to be predicated at all times upon the 
character of the rights which are threatened, and not upon the class 
or nature of the persons involved in the controversy. 

We do not comment upon the many cases cited by the learned 
members of the majority in support of their views upon equity plead- 
ings in this connection. We quite agree with the correctness of such 
decisions, but we draw from them quite a different conclusion from 
that implied by the majority. We think they prove what the majority 
evidently adduces them to disprove. To us they are evidence that 
the pleadings required with such particularity in the special class of 
cases involved in section 266C are required generally in all applica- 
tions for equitable intervention. The majority are thus seen to be 
offering as proof of the need of special legislation for pleadings in a 
particular class of cases the fact that the courts have substantially 
required such conditions and pleadings in all classes of cases of which 
the kind enumerated are a part. 

The second paragraph of section 266C contains to our mind the 
most vicious proposal of the whole bill. It enumerates certain specific 
acts and provides that no restraining order or injunction shall pro- 
hibit the doing of them. Most of the acts thus recited are in them- 
selves not amenable to the injunction process under existing law and 
practice. No court does or would enjoin them, but to declare by 
law that these acts should under no circumstances be restrained, we 
do not hesitate to say is a proposal without precedent in the legis- 
lative history of this country. No legislature has ever proposed that 
any act however innocent itself should be sanctified irrespective of 
the motive or purpose of the actor. ''No conduct," says Mr. Justice 
Holmes in Aiken v. Wisconsin (195 U. S., 194), "has such an absolute 
privilege as to justify all possible schemes of which it may be a part. 
The most innocent and constitutionally protected of acts or omissions 
may be made a step in a criminal plot, and if it is a step in a plot, 
neither its innocence nor the Constitution is sufficient to prevent the 
punishment of the plot by law." 

The majority have quoted various decisions in which particular 
acts under the pleadings presented to the court were held lawful and 
their prohibition denied. The same acts under other circumstances 
have been held unlawful and enjoined by the very courts, and in the 
course of the very decisions which the majority cites. Thus, in 
Arthur v. Oakes (63 Fed. Rep., 310), Mr. Justice Harlan is quoted to 
sustain the proposition that no man can by injunction be required to 

gerform personal service for another, and in that decision Justice 
[arlan eliminated from the injunction the words "and from so 
quitting the service of the said receivers with or mthout notice as to 
cripple the property or prevent or hinder the operation of said rail- 
road." The majority must observe, however, that Mr. Justice Harlan 
likewise held, "But diff'erent considerations must control in respect 
to the words in the same paragraph of the writs of injunction, and 
from combining and conspiring to quit with or mthout notice the 
service of said receivers with the object and intention of crippling the 
property in their custody or embarrassing the operation of said rail- 
road." Thus, the same act of quitting is lawful under one set of 
circumstances and unlawful under another, because the concerted 



8 REGUIiATION OF INJUNCTIONS. 

action in the first instance, in the opinion of Mr. Justice Harlan, "is 
a very different matter from a combination and conspiracy among 
employees with the object and intent, not simply of quitting the 
service of the receivers because of the reduction of wages, but of 
crippling the property in their hands and embarrassmg the operation 
of the railroad." 

The majority undertakes to prescribe a set rule forbidding under 
any circumstances the enjoining of certain acts which may or may 
not be actuated by a malicious motive or be done for the purpose of 
working an unlawful injury or interfering with constitution al lights 
of employer or employee. In the same opinion Mr. Justice Harlan 
points out the impossibility of prescribing a set rule of this character 
and says, "The authorities all agree that a court of equity should not 
hesitate to use its power when the circumstances of the particular 
case in hand require it to be done in order to protect rights of prop- 
erty against irreparable damage by wrong doers. It is as Justice 
Story said, ' because of the varying circumstances of cases that courts 
of equity constantly decline to lay down any rule which shall limit 
their power and discretion as to the particular cases in which such 
injunction shall be granted or withheld,'" and the authority pro- 
ceeds, " there is wisdom in this course, for it is impossible to foresee all 
the exigencies of society which may require their aid and assistance to 
protect rights or redress wrongs. The jurisdiction of these courts 
thus operating by spe^-ial injunction is manifestly indispensable for 
the purposes of social justice in a great variety of cases and therefore 
should be fostered and upheld by a steady confidence." (Story, 
Equity Jurisprudence, sec. 959B; Arthur v. Oakes, 63 Fed., 328.) 

Among the acts which the second paragraph of section 266C declares 
shall not be restrained is to prohibit any person or persons to termi- 
nate any relation of employemnt, or from ceasing to perform any work 
or labor or from recommending or persuading others by peaceful 
means so to do; of peacefully persuading an}^ person to work or to 
abstain from working, or from ceasing to patronize or employ any 
party to such dis]:)ute or from recommending, advising, or persuading 
others by peaceful means so to do"; etc. 

While many of these acts are in themselves entirely harmless and 
would never be enjoined by any court, yet under certain circumstances 
the same acts might become a weapon of lawless and destructive 
industrial warfare demanding the protection of the courts, this section 
would prevent the issuance of the injunction in the Debs case (In re 
Debs, 158 U. S., 564); it would prevent the issuance of the injunc- 
tion in Toledo & Ann Arbor v. Pennsylvania Co. (54 Fed., 730); it 
would prevent the issuance of any injunction to restrain either work- 
men or employers who were the objects of the most vicious form of 
boycott that has been passed upon by the courts, or can be devised 
by the ingenuity of boycotters. It changes the remedies by which 
the Sherman Act may be enforced, inasmuch as if any of these acts 
enumerated in section 266C were the means employed to enforce the 
restraint of trade or to damage the interstate business of any indi- 
vidual or corporation no injunction could be obtained either by a 
private individual or by the Government against such acts. 

In the Debs case, a combination sought to paralyze the railroads 
of the United States and prevent the carrying of the mail until the 
railroad companies would agree not to haul Pullman cars because of 
a controvers}^ between the Pullman Co. and certain of its emploj^ees 



KEGULATION OF INJUNCTIONS. 9 

who were not in the employ nor in any way related to the railroad 
companies. It is true there were acts of violence, but the general 
scheme was one of persuading all employees of the railroad companies 
to quit until the demands of the boycotters and strikers had been 
complied with. In the Toledo & Ann Arbor case the famous rule 12 
of the brotherhood provided that none of its members should handle 
the cars of any carrier with which members of the brotherhood were 
in a dispute. In that case the brotherhood employees of the Penn- 
sylvania refused to handle cars of the Toledo & Ann Arbor because 
of a dispute between that road and some of the brotherhood, and 
they threatened to quit the service of the Pennsylvania road unless 
it agreed to violate the provisions of the interstate-commerce act by 
not affording equal facilities to the cars of another road. No violence 
was threatened. The brotherhood merely undertook to "peacefully 
persuade" the Pennsylvania Co. not to handle the cars of the other 
road under a threat of leaving their service — a thing which they had 
a perfect right to do to better their own condition, but not for the pur- 
pose of compelling the Pennsylvania Railroad Co. to violate the law. 

The majority report quotes at length from the case of Pickett v. 
Walsh (192 Mass., 572), "and regret the necessity of limiting the 
quotations, because the whole opinion could be studied with profit." 
We agre'e with the majority that the whole opinion could have been 
studied with profit, since it condemns forms of "peaceful persuasion" 
from which the majority would withdraw equitable intervention. 
Speaking of the case before it, it says: "It is a refusal to work for A, 
with whom the strikers have no dispute, because A works for B, with 
whom the strikers have a dispute, for the purpose of forcing A to 
force B to yield to the strikers' demands. * * * It is a combina- 
tion by the union to obtain a decision in their favor by forcing other 
persons who have no interest in the dispute to force the employer to 
decide the dispute in their favor. Such a strike is an interference 
with the right of the plain tils to pursue their calling as they think 
best. In our opinion organized labor's right to coercion or compul- 
sion is limited to strikes against the persons with whom the person 
has a trade dispute ; or, to put it in another way, we are of the opinion 
that a strike against A, with whom the strikers have no trade dis- 
pute, to compel A to force B to the strikers' demands is unjustifiable 
interference with the right of A to carry on his calling as he thinks 
best. Only two cases to the contrary have come to cv.r attention, 
namely, Bohn Manufacturing Co. v. Hollis (54 Minn., 223) and Jeans 
Clothing Co. v. Watson (168 Mo., 133)." 

This case which the majority believe could be "studied with profit" 
is squarely against the proposal of their bill, and the two cases aHuded 
to as being the only ones known to the court contrary to such view, 
for both have been overruled. Bohm Manufacturing Co. (54 Minn., 
223) was overruled in Gray v. Building Trades Council (91 Minn., 
171). The second case is alluded to by the majority of the commit- 
tee in support of its contentions and the majority declare the logic of 
the court in that case "appears unanswerable." This "unanswer- 
able " logic was overruled by the Supreme Court of Missouri in Lohse 
Patent Door Co. v. Fuel (215 Mo., 421). 

The majority report also quotes in support of their contention 

from Vagelahm V. Gunter (167 Mass., 92), saying, "Justice Holmes, 

now of the Supreme Court of the United States, delivered the opinion." 

The opinion was delivered by Mr. Justice Allen and is squarely against 

H. Kept. 612, pt 2, 62-2 2 



10 REGULATION OF INJUNCTIONS. 

the contention of the majority, IMr. Justice Hohnes having deHvered 
a dissenting opinion in which he stood alone. The majority have 
been driven to the necessity of quoting from other dissenting opinions 
in support of their opposition, and to these we do not deem it necessary 
to give attention. 

It is said by. the majority that no question of constitutionahty is in- 
volved. We submit that if the measure is to be construed, as it evi- 
dently is, to prevent the application of injunctive relief to certain acts 
in disputes between emj^loyer and employee which may be part of a 
scheme or plan to work irreparable injury, which acts could be en- 
joined in any other dej^artment of litigation, it is obvious that the 
parties affected would be denied the equal protection of the law and 
due process of law, coming well within the rule laid down in Connelly 
V. The Union Sewer Pipe Co. (184 U. S., 540); Goldberg v. Stable- 
men's Union (149 Cal., 429); Pierce v. Stablemen's Union (156 Cal., 
70) : and Niagara Fire Insurance Co. v. Cornell (110 Fed. 816). 

We do not consider the English act of 1906, which is quoted by the 
majority as a precedent for some of its proposals. There is no paraMel 
whatever between the conditions at which the English act is aimed 
and the fundamental restrictions of the organic law of this country 
having no similitude in the constitution of the British Em])ire. The 
peculiar privileges conferred upon trades-unions by the English act 
of 1906 are accompanied by disabilities and criminal provisions of so 
drastic a nature that if they were offered as any part of the legislation 
of this country we should deem it our duty to oppose them in the in- 
terest of all workingmen. 

We agree with the majority that "liberty and more of it is safe in 
the hands of the workingmen of the country." We are convinced 
of the merit and truth of that contention. We do not, however, 
believe that liberty is advanced in the person of any citizen by strip- 
ping him of remedial protection through processes which have 
received the deliberate and mature approval of the English-speaking 
race during all the centuries of its history. We can not believe that 
the due protection of person and property under constitutional 
guaranties and by remedies tested by time is ''an impediment to 
progress," or that the destruction of the essential remedies by which 
person and property receive protection is "a great social advance." 
We believe with the President of the United States, in a famous 
statement made by him many years since to the American Bar 
Association, "It will not be surprising if the storm of abuse heaped 
upon the Federal courts and tlie pohtical strength of Federal groups, 
whose plans of social reforms have met obstructions in these tribunals, 
shall lead to serious efforts, through legislation, to cut down their 
jurisdiction and cripple their efficiency. If this comes, then the 
responsibility for its effects, whether good or bad, must be not only 
with those who urge the change, but also with those who do not 
strive to resist its coming." (Address to American Bar Association 
at Detroit, 1895.) 

John A. Sterling. 

R. O. Moon. 

Edwin W. Higgins. 

Paul Howland. 

Frank M. Nye. 

Francis H. Dodds. 

o 



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